GHANSHYAM MAHATO Vs. SADHU CHARAN MAHTO

JUDGEMENT

(1.) IN this application the petitioner has prayed for quashing the order dated 25th February 2005 passed in Title Suit No. 29 of 2002 whereby the petitioners ' petition for deciding the issue of resjudicata, as a preliminary issue, has been rejected.

(2.) THE petitioners are the defendants in the suit. They filed written statement taking grounds, interalia, that the suit is barred by principle of resjudicata. Subsequently, a petition was filed on behalf of the defendants praying for deciding the said issue of resjudicata as a preliminary issue. Rejoinder to that petition was filed by the plaintiff -respondent. The Court below, considering the relevant facts and the provisions of law, came to the finding that since the said issue of resjudicata is a mixed issue of law as well as of fact and since the same can be decided on the basis of the evidence, it cannot be decided as a preliminary issue. The learned Court below while disposing of the said petition, also considered the decision of the Patna High Court reported in 2005(1) PLJR 342 as well as the provisions of Order XIV Rule 2 of the Code of Civil Procedure as amended by the Amending Act 104 of 1976 which runs thus: ''

(3.) THIS writ application is, accordingly, dismissed.